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List:       dmca-discuss
Subject:    [DMCA_Discuss] Lessons from Oregon's Open Source bill
From:       "Jon O." <jono () microshaft ! org>
Date:       2003-11-25 22:57:58
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----- Forwarded message from Dave Farber <dave@farber.net> -----

Delivered-To: dfarber+@ux13.sp.cs.cmu.edu
Date: Tue, 25 Nov 2003 13:27:30 -0500
From: Srini Ramakrishnan <cheeni@cmu.edu>
Subject: [For IP] Lessons from Oregon's Open Source bill
To: David J Farber <dfarber@cmu.edu>
Organization: Carnegie Mellon University

For IP if you wish:

Lessons from Oregon's Open Source Bill

http://www.newsforge.com/article.pl?sid=03/11/20/1628212

On March 5, Oregon became the first state in U.S. history to formally
consider legislation relating to government acquisition of Open Source
software.  Within two weeks a similar bill was introduced into the Texas
state legislature. Microsoft-funded lobbyists descended in swarms upon both
capitols to destroy the proposals. Anyone interested in working for Open
Source-related legislation elsewhere would do well to study what happened.

A brief overview of the process

State laws in the U.S. begin when a legislator introduces a bill, which is
assigned a number and is sent to a committee for examination.  After holding
one or more hearings the committee decides whether to send the bill to the
floor of its respective chamber (i.e., House of Representatives or Senate)
for a vote.  If the bill passes the floor vote, it then moves to the other
chamber where it is again assigned to a committee and must undergo the same
process it endured in the first chamber.  Only a tiny handful of bills make
it through this process; those that survive it go to the state governor for
final approval (or a veto).

It's a good process on the surface, but is easily subverted by powerful
interests.

The leaders of every legislature in the U.S. (i.e., the Speaker of the House
or the Senate President) are chosen along party lines and are incredibly
powerful individuals.  They alone choose who will chair each of the various
committees that work on the bills.   Hand-picked by party bosses for their
obedience (lest they be relieved of their position), these committee chairs
are also powerful individuals.  They can kill a bill simply by neglecting to
schedule a hearing for it, and indeed this is the way most bills die.

Every legislator and lobbyist knows this, and in the end few bills are ever
considered on their merits; they usually get a hearing because the committee
chair either likes the bill or needs a favor from some other committee.  A
lobbyist representing a large bloc of voters (or a large campaign donation)
can also have a huge influence over which bills will get a hearing and which
will be shut out into the cold to die.

If you choose to lobby for a bill you will not be in a game with nice people
who play by the rules.  The game was rigged before you ever got to the
table; and just as a Smith & Wesson beats any hand, your adversaries have no
qualms about using force and raw power to trump you.  Neither do they care
about the costs to society of the corruption they're bringing to the
process.  They have no intention of playing fairly.  Get used to it.

In the end, the process is mostly about power and the money that buys power.
Complain if you want, but to be effective you have to learn how to deal with
that reality.  Understand that if you get involved you could become somewhat
of a cynic.

Winning against a stacked deck

It is not realistic to expect a new idea to pass the first time it is
proposed.  The best you can expect is to get a committee hearing.  Since
only a tiny fraction of bills get that far, this is considered a major
accomplishment by itself.  You will find that the press (which never had
time to talk with you before) is suddenly interested the moment your bill is
scheduled for a hearing.

Getting to a hearing requires two things:  a legislator to introduce the
bill in the first place and a strategy for shepherding it through the
roadblocks that stand in your way.

Since most of politics is about connections, getting to know a lot of
politicians is probably the most important part of the whole process.  If
you don't know any, the best place to start is with the ones who represent
you at your state capital.  There will be two of them:  one in the Senate
and one in what in most states is called the Assembly or the House.  The
author of Texas's open source bill simply contacted his own State Senator
and asked him to introduce it.

In writing the bill, get help from some recognized experts. I wish to
acknowledge a few people who helped me write Oregon's HB 2892:   Walt
Pennington (author of a proposal in California that was never introduced),
Jeremy Hogan of Red Hat Corporation, and Bruce Perens of the Open Source
Initiative (OSI).  Larry Rosen of the OSI also contributed valuable advice
after the fact.  While history may credit me as the bill's author, in the
end it is actually a special attorney's office known as Legislative Counsel
that writes the final drafts.  They can take a few days or a few weeks to
convert your proposal to formal legal language.  During this time, an
effective legislator will quietly talk to colleagues to see whom he can
count on for support.

The importance of stealth

A good legislative campaign is a lot like a mushroom:  most of it exists
underground, out of the public eye.  When it finally appears, it does so
with very little warning -- and in many cases is quickly tromped in disgust
by someone who doesn't like it!

When planning to introduce Open Source legislation in your state, it is
important to remember that stealth is essential.  As soon as your opponents
learn that such a bill is coming they will pay a visit to the chair and the
members of the committee that will receive the bill, attempting to persuade
them not to schedule a hearing.  If they are successful, your bill will have
about the same fate -- and lifespan -- of most mushrooms.

So don't tip your hand.  The bill will become public knowledge the day it is
introduced; there is no need for your opponents to know about it before
then.  The legislator who introduces your bill should have a pretty good
idea which committee will get it. It's a good idea to visit the chair and
members of that committee ahead of time and mention "a bill that I'm working
on with Sen. or Rep. so-and-so."

In the case of HB 2892, this saved our bill's neck.  By the time Microsoft
heard about the bill and sent someone to talk to the committee chair about
it, he was already in favor of it and flat-out told them "This bill is going
to get a hearing."  We had also lined up about half of the committee members
in support.

This is the way successful legislation gets passed.  Experienced lobbyists
will tell you (if you know any well enough to get them to confide this) that
most committee hearings are nothing more than a show; by the time a bill
gets to a hearing most members have already made up their minds, and in some
cases even the floor votes have been counted!

Our opponents were, of course, very experienced and had a considerable
amount of campaign cash to spread around.  I think we surprised them when
they found out how well we had prepared. But as I already mentioned,
Microsoft's lobbyists do not play by the rules.  A few years ago in Maryland
they got UCITA legislation pushed through by convincing the House Speaker
(after making sizable donations) to send the bill to a committee of their
choosing.

They saw that they were losing the battle in Oregon.  We had done our
homework well:  before the committee vote an insider assured us that the
bill was "greased" and we knew that it would pass the floor vote.  Then Jim
Craven of the American Electronics Association, a lobby representing
$400,000 in campaign donations, showed up in the office of Speaker of the
House Karen Minnis and ordered her to "make this bill go away."  And two
hours before the committee was to vote the bill out to the floor, the
committee chair obediently pulled the bill.

Speaker Minnis took a huge amount of heat in the local press for this, and
it is expected to become an issue in her re-election campaign next year.

Remember that in the end it's all about power and the money that buys it.
If you want to win you have to learn how to wield power, and there's nothing
more powerful than bringing down a politician who ignored the needs of the
people in exchange for campaign cash.

Ken Barber been a computer tech for about 20 years, starting out as a
programmer, then moving to desktop support and finally to network
administration. He teaches Linux system administration at a local community
college.

----- End forwarded message -----
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